Judge to former MontCo D.A. Castor: Why didn’t you put an immunity agreement in writing?

Former MontCo D.A. Bruce Castor had testified for nearly six hours before judge Steven O’Neil asked him the one question that had hung in the air all day: Why didn’t Castor put the immunity agreement he said he reached with Bill Cosby’s lawyer in writing?

Castor paused for a few seconds before answering. He said he didn’t want to make the official move of what is defined as transactional or derivative immunity under Pennsylvania law. He thought having to do so would force him to reveal his belief that accuser Andrea Constand was not a credible witness and could damage her ability to win a civil suit against Cosby.

It was a vague answer on a day that ended with no decision as to whether the case against Cosby could proceed. O’Neil said the hearing would pick up again at tomorrow at 9:30 a.m. and hoped he could make a decision “one way or the other” tomorrow.

Castor was the lone witness to speak today. As a judge decides whether depositions from the 2005 civil case can be used against Cosby in the criminal case, Castor said the decision he made a decade ago to not prosecute — and to prohibit the state from ever prosecuting Cosby against Constand — was the best way to avoid Cosby pleading the fifth, allowing his accuser a better chance at prevailing in a civil case.

O’Neil, the judge, questioned whether the decision Castor described about Cosby would even hold during a deposition from that civil suit or how a judge in the civil suit would have even known it was made. O’Neil told Castor that he wouldn’t have been a judge or a lawyer in the civil suit and therefore wouldn’t have had any sway.

Asked by assistant district attorney Stewart Ryan whether he had struck any similar deals to the one he described earlier today, Castor said he had not but had been asked by judges during various civil cases whether certain people called to be witnesses were facing any charges. If they were not, he would respond that they would not be prosecuted for that certain offense so they could no longer plead the Fifth Amendment.

The prosecution used a strategy of trying to show inconsistencies in the way he discussed the case with the media and with Risa Vetri Ferman last fall when she was considering pressing charges as the district attorney of Montgomery County.

Castor testified that he made clear to Ferman his decision to not ever prosecute Cosby and asked her to alert Constand’s lawyers. But in answers to the prosecution Tuesday and in an email to Ferman in September, Castor appeared to be inconsistent as to what he remembered telling Ferman about his Cosby decision.

When Cosby’s attorney Brian McMonagle asked him during redirect whether the immunity he had given Cosby with regards to Constand was meant to last forever and from the entire Commonwealth of Pennsylvania, Castor responded that McMonagle was correct.

Castor told the prosecution that he thought Cosby had inappropriately touched the accuser, Constand.

“What I think is that Andrea Constand was inappropriately touched by Mr. Cosby,” he said. “I am not analyzing it back in 2005 as to what I think. I am analyzing it in 2005 as to what I can prove. I can probably rattle off half a dozen people I think committed murder in Montgomery County but I can’t prove it and that’s why they didn’t get arrested.”